He pointed to a 1977 case, "Coker vs. Georgia," where the U.S. Supreme Court ruled the death penalty unconstitutional for a rape that did not result in death, and similarly overruled capital punishment in another Georgia kidnapping case.
"Prosecutors are to take a look at the law, which is the same as it has been, and pursue the death penalty when it's appropriate," he continued.
However, he noted the distinction between crimes against an individual versus crimes against the state.
Typically, Dunham said, crimes against an individual would be lower-level drug dealers, in which case, the U.S. Supreme Court has made it clear that capital punishment would be unconstitutional if it is not a crime resulting in death.
In cases of higher-level drug dealing, which is typically international, most treaties and international law will not extradite an individual who may face the death penalty.
"The death penalty is clearly unconstitutional in respect to small-dealers, and it is ineffective with respect to international drug trafficking because no country will turn over any drug trafficker to the United States who may face the death penalty," Dunham said.
As a result, he does not believe the attorney general's memo will open the door to capital punishment being used for more non-murder crimes.
Ultimately, Murphy was critical of the use of the death penalty as an effective way to combat the growing opioid crisis within the U.S.
Instead, she suggested transferring the funds which would have been used for the death penalty toward supporting healthcare professionals who provide support and treatment for individuals impacted by drug use.
"Those suffering from addicting, their families, and their communities need healing and restoration," Murphy noted, saying, "the death penalty does not provide either."
"Solutions to any instance of harm must be restorative and allow for the flourishing of all people. We must seek resources for prevention, rehabilitation and treatment – not retribution and vengeance."
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